Historical and Legal Aspects of The Arab-Jewish : Palestine-Israel Conflict, G. Adler
15 June 2002[Voir la traduction française de Liliane Messika]www.reinfo-israel.com/documents/showthread.php?threadid=2128A. Introduction
For the past 35 years Israel has been politically attacked constantly by the nations of the World generally, and by the Arabs in particular, for allegedly occupying the West Bank and Gaza contrary to International Law.
Israel's response has been that the legal status of Judea and Samaria (West Bank) and the Gaza strip is not occupied territory, but rather territory in dispute.
In making the position clear, it is important to bear in mind some not so ancient history as well as the relevant internationally recognised treaties and agreements, including the provisions of the Palestine Mandate, which in the absence of validly enacted legislation to the contrary, may still have application today in the West Bank and Gaza.
Following the dismemberment of the Ottoman Empire after World War I, Palestine – on both sides of the Jordan River - was created by the League of Nations. In July 1920 , the government and administration of the territory, consisting of some 97,740 sq.km, was entrusted to Britain by the League of Nations under the terms of the Mandate.
This provided, inter alia, for:
(a) the establishment in Palestine of a national home for the Jewish people …. [with the proviso that] nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine.
(Preamble and Art 2)
(b) facilitation of Jewish immigration and encouragement of close settlement by Jews on the land, including State lands and waste lands not required for public purposes, while ensuring that the rights and position of other sections of the population are not prejudiced; (Art 6)
A number of points should be noted here:
· The primary objective of the Mandate required Britain, as the Mandatory power, to facilitate Jewish immigration and to encourage close settlement by Jews on the land, including State lands and waste lands not required for public purposes, provided that the rights and position of other sections of the population are not prejudiced.
· The proviso, constituting an ancilliary objective, limits the full exercise of the mandatory power in pursuance of the primary objective. The proviso neither confers any new civil and religious rights on non-Jewish communities, nor does it confer rights on any new communities, which might settle on the land subsequently. Protection is given only to such non-Jewish communities as existing at the time.
To the best of the writer's knowledge, between the granting of the Mandate in 1922 and the present time, there has been no valid constitutional legislative enactment by any internationally recognised sovereign authority which repeals the above provisions such as would prohibit the Jewish settlement in the West Bank. B. Historical Background
To satisfy political commitments made by Britain to Sharif Hussein, King of Hijaz (Arabia) and his sons for their initiation of the Arab Revolt against the Turks in 1916, and to relieve, in part, the financial burden of the Mandate from Britain's taxpayers, Britain delegated to Emir Abdullah (Hussein's second son), the administration of some 70,000 sq.km. lying to the east of the River Jordan and excluded it from Jewish settlement (Transjordan). This constituted some 71.5% of the total 97,740 sq.km. which comprised the Mandate Territory. The balance, of only 28.5% of the Mandated Territory, west of the Jordan, was to remain available for Jews to reconstitute their National Home. Those Arabs who lived on the west bank of the Jordan were to be resettled in Transjordan once the Jewish homeland was established. According to Sir Alec Kirkbride, Britain's representative in the area:
At the time of the issue of this mandate, His Majesty's Government were too busy setting up a civil administration in Palestine proper, west of the river Jordan, to be bothered about the remote and undeveloped areas which lay to the east of the river and which were intended to serve as a reserve of land for use in the resettlement of Arabs once the National Home for the Jews in Palestine, which they [the British Government] pledged to support, became an accomplished fact. There was no intention at that stage of forming the territory east of the river Jordan into an independent Arab state (Kirkbride, Crackle of Thorns, London, 1956, p.19.) (emphasis added)
Between 1922 and 1948 acting contrary to the Mandate and to appease Arab violence and rioting, Britain not only turned a blind eye to extensive illegal Arab immigration, which should have been settled in Transjordan (per Kirkbride above), but also severely restricted Jewish immigration (British White Papers of 1922 and 1939), which contributed in no small measure to the annihilation of European Jewry. (Joan Peters, From Time Immemorial, Harper & Row, New York 1984)
The end of World War II saw the resurrection in 1945 of the old League of Nations in the form of the United Nations and the emergence of over 100 new states each giving expression to demands for self determination and nationalism.
The UN, under Chapter XII of its Charter, assumed the role of the League in regard to the various Mandates which were still in effect.
Amongst those seeking self determination and statehood was the Jewish population of Palestine as represented by the Jewish Agency and Transjordan, which obtained it's independence from Britain in 1946.
The UN General Assembly in 1947, under Resolution 181, recommended the partition of that portion of Palestine remaining under the Mandate, (after Britain had transferred Trans-Jordan to the sovereignty of King Abdullah) into an Arab and a Jewish state, with Jerusalem being held under an international regime. This was accepted by the Jewish representatives and rejected both by Arab institutions in Palestine and the surrounding Arab nations.
In 1948, the British left Palestine and Israel declared itself independent on May 14, on which date, in response to the demands of the Arab High Command, five Arab armies invaded the nascent state
The Islamic religious leaders in Palestine and the Arab High Committee encouraged non-combatant Arab residents of Palestine to evacuate their homes, anticipating their ultimate return following the Jews' defeat in the ensuing war. With Israel's victory and successful establishment, the refugee problem was created - and this notwithstanding some serious attempts by the Jewish population (particularly in Haifa) to dissuade their Arab neighbours from leaving. (E. Karsh, Nakbat Haifa: Collapse and Dispersion of a Major Palestinian Community 37 Middle Eastern Studies, pp. 25-70.)
In the territory west of the Jordan River, the cease-fire lines ultimately agreed upon among the belligerents left Jordan in control of Judea and Sumaria and Egypt in control of the Gaza strip, amounting to approximately 6000 sq.km - being 6% of the total Mandate territory. Thus, together with the 70,000 sq.km. of TransJordan lying to the east of the river (71.5%), Arab states now retained control of 77.5% of the original 97,740 sq.km constituting total Mandate Territory, leaving Israel to establish and develop a Jewish Homeland in the remaining 22.5%.
As a result of the 1948 War, 600,000 Arabs fled from Israel and 800,000 Jews were driven out or fled from the Arab lands in which they had been living. The Jews were absorbed by Israel, while the Arabs have been kept in refugee camps as political pawns.
While it should be noted that Egypt never annexed the Gaza strip, Jordan purported to annex Judea and Samaria ("West Bank"). Only the UK and Pakistan recognised such act, while the other Arab states rejected it.
Why no one called the West Bank territory "occupied" when Jordan and Egypt exercised their control from 1948 to 1967 is not surprising since from 1918, no state had successfully asserted sovereignty, which was generally recognised internationally. There was, in law, and there still is, an abeyance of sovereignty in that territory.
On June 6, 1967, Israel acted in a pre-emptive defensive war started against it by:
(i) Egyptian blockade against Israeli shipping in international waters - Straits of Tehran;
(ii) Egyptian demand and UN compliance for the removal of UN peacekeeping force from Egyptian-Israel border; and
(iii) the massing of troops on Egyptian, Syrian, Lebanese and Jordanian borders.
Notwithstanding Israeli pleas for two weeks prior to June 6 1967, the United Nations failed to take any positive action in Israel's defence.
In the ensuing Six Day War Egypt lost control of Sinai and the Gaza strip, Syria - the Golan Heights, and Jordan lost Judea and Samaria including Jerusalem.
It should not be overlooked that Israeli leaders pleaded with Jordan not to enter the War, but Hussein, joined his Arab brethren and was defeated in 96 hours. C. Land for Peace
At issue currently, is the question whether the establishment by the Israeli Government of settlements populated by Jews constitute occupation contrary to international law or even domestic law.
It should be remembered that settlements have never been an obstacle to peace as is now argued by the Arab block. From 1949 until 1967, when Jews were forbidden to live on the West Bank, the Arab block refused to make peace with Israel. From 1967 until 1977, the Labour Part established only a few strategic settlements in the territories and yet there was still opposition to peace. In 1977, only after the Likud government - committed to greater settlement - actively took power and settlement started in earnest, was there any movement in the Arab block towards peace, occasioned when Sadat went to Jerusalem. Such Israeli settlements as existed in Sinai were subsequently removed as part of the peace agreement with Egypt.
In the West Bank and Jerusalem, Israel has permitted its citizens to recover lands it once owned prior to 1948 but abandoned during the 1948 War of Independence and to establish new settlements in the territories now under its control
However it is the buzz words illegal occupation which has given rise to much confusion in this long lasting conflict – and create the pretext for Arab hate and violence.
The term occupation is of itself ambiguous, and includes any or all of the following: (a) expropriation and physical occupation of privately owned land; (b) appropriation of vacant publicly owned land, (c) military and civil jurisdiction and regulation over persons - in contrast to territory and (d) the exercise of legal/political jurisdiction over territory which could include, with varying degrees of scope and intensity, the establishment of military and civilian governmental institutions and the presence of military forces.(a) Expropriation of land physically owned and occupied by Palestinians
Israel has made a point of not clearing Palestinians off the land they occupy for the purpose of settlement building, neither has it taken land for any other purpose except that required for public works - like roads or for security purposes where Palestinian terrorists have used buildings located amongst a civilian population for sniper attacks or ambush positions alongside roads. In such cases the buildings have been demolished and not re-occupied by Israelis.
Some settlements and houses have been constructed on land which was previously owned prior to Israel's 1948 War of Independence by Jewish communal agricultural settlements (kibbutzim) in the Etzion Block and Gush Katiff; residential redevelopment of the Jewish Quarter in the Old City, Rabbinical and religious educational centres (Yeshivot) in East Jerusalem and Hebron, the secular Hebrew University on the Mount of Olives, and new flats/houses for urban residential use in the Gilo area, all of which was privately owned by Jewish citizens in Mandatory times.(b) Appropriation of vacant publicly owned land:
Settlements have for the most part been built on barren hilltops, which have never been privately owned, populated, cultivated or otherwise physically occupied
This is consistent with Article 6 of the Palestine Mandate, which it will be remembered encouraged close settlement by Jews on the land, including State lands and wastelands not required for public purposes. Article 6, to the best of the writer's knowledge has never been repealed by any sovereign power having jurisdiction in the West Bank.(c) "Occupation" through the exercise of jurisdiction over persons and their activities
After the Oslo agreements described below, Israeli civilian control ceased to be exercised over 97% of the Palestinian population. The Palestinian Authority, created under the Accords, took control of, and exercises police jurisdiction over, the Arab population in the West Bank and Gaza, particularly in Jenin, Tulkarm, Nablus, Ramallah, Jericho, Bethlehem, Hebron and the Gaza strip.
Of greatest importance has been the transfer to the Palestinians of responsibility for almost all areas of civilian activity. This includes the powers of domestic legislation, administration and enforcement of law, municipal administration, health, safety, education, welfare, police, finance, economic and physical planning, development of infrastructure and transportation. The PA also has authority in matters of broadcasting, and exercises control over the press and media.
Although Israel has retained control over population movements between Palestinian and Israeli urban centres and the right to re-enter Palestinian urban areas for reasons of security, Israel cannot be said to occupy and control the West Bank and Gaza strip population in the peaceful exercise of its civilian rights. It has been alleged, improperly, that Palestinians need special documentation to move from one town in Area A, through Israeli controlled territory to another Area A town. This is incorrect.
For most people an identity card (ID) is the only document required to be produced. (Israeli's, too, within Israel are required to carry ID's at all times). Unfortunately, there are occasions when Palestinians are delayed at check points for identification purposes. This, however, is for security reasons alone, when Israeli forces have received reliable intelligence of a planned incursion by Palestinian terrorists or of a suicide bomber into Israeli territory. Such delays are not expressions of Israeli arrogance and intended Arab humiliation, but are the direct result of the failure of the Palestinian Authority to abide by the terms of the Oslo Agreements.(d) Exercising legal/political jurisdiction over territory captured in the Six-Day War
These are a number of international treaties and agreements which impact on Jewish/Israeli settlement in the West Bank, some of which deal almost exclusively with the issue while others – only tangentially. Among the most significant are: (i) the 4th Geneva Convention, (ii) Khartoum Conference, (iii) UNSC Resolutions 242 and 338, (iv) Camp David Accords, Madrid Peace Conference and (vi) Oslo Accords.
This last two sets of Agreements have tried to resolve in a detailed manner three main points: (a) Arab recognition of Israel as a legitimate state; (b) peace between the Israelis and the Arab belligerents and (c) the return of territory taken by Israel in the Six Day War.
The Camp David Accords provided the basis for the return of Sinai to Egypt, and the Oslo Accords allowed Jordan to sign a peace treaty with Israel in which settlements were not an issue.
The Oslo Accords also provide a detailed framework of obligations assumed by the Palestinian Liberation Organisation and Israel, inter alia, for the cessation of violence as a means of resolving their disputes, the establishment of Palestinian self-governmental institutions and phased withdrawal of Israel forces as an interim measure. The Accords contemplate, as subjects to be determined in Final Status negotiation, the complete military withdrawal of Israel's presence in the West Bank and Gaza; the status of the Jewish settlements (not their building or their removal), Jerusalem, and the return of refugees
Let us now examine the treaties and agreements in some detail to determine the extent to which Israel is, allegedly, in illegal occupation of the West Bank and Gaza.(i) 4th Geneva Convention:
It has been asserted by some, that Israeli settlement in the West Bank and Gaza is contrary to the 4th Geneva Convention that regulates, inter alia, the law arising out of belligerent occupation. The Convention becomes applicable in cases of declared war or armed conflict between National States who are parties to the Convention and where the whole or part of the territory under the legitimate sovereignty of one state becomes occupied by another State.
Furthermore a distinction has to be made between aggressive conquest and territorial disputes that arise after a war of self-defence. In the latter situation, where a prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defence has against that prior holder, better title. This is Israel's position.
As has been shown earlier, after the withdrawal of the British from Palestine in 1948, there was an abeyance of sovereignty in West Bank territory and the Gaza strip. Although the areas were under the control and occupation of Jordan and Egypt, the world in general (except for Britain and Pakistan) and the Arabs in particular, failed to confer any internationally recognised sovereign status. The Palestinians residing in the West Bank and Gaza were not in 1967, nor are they today, subjects of any recognised sovereign having jurisdiction in the territory. Neither are they yet recognised internationally as having achieved the status of Statehood.
Since Israel's capture of the area did not result in the ousting of any sovereign power, neither under customary international law nor under the Convention do Judea, Samaria and Gaza constitute "occupied territory". Rather they consititute "disputed" territory. The term "occupation" is misleading and implies that Israel captured the territory in a war of aggression and conquest - which was not the case. The fact that Israel has voluntarily agreed to apply the Convention's humanitarian provisions of belligerent occupation within the territories does not alter the situation.
Even if it is argued that the 4th Geneva Convention does apply to the West Bank and Gaza, its provisions do not prohibit Jewish settlement. The relevant provision is found in Article 49 (6). This provides:
"The Occupying Power shall not deport or transfer parts of its own civilian population into territory it occupies
It is, however, clear from the full text of Article 49 and from its title "Deportations, Transfers, Evacuations" that the provision is directed against forcible transfers of the occupying power's civilians, and it is designed to protect the local population from displacement from the occupied territory
These conditions are absent in the case of the Israeli settlements. The movement of Jewish population in the territories is entirely voluntary and settlements are located for the most part on what were previously barren and uninhabited hilltops (public land - consistent with Article 6 of the Mandate) without displacing existing Arab settlement, much of which is only decades rather than centuries old. Furthermore, the growth of Jewish settlements is constrained within their originally established boundaries and they have neither been permitted, nor have they in fact, encroached on Palestinian villages.
As will become clear below, this situation is recognised in the Israeli-Palestinian peace agreements, which do NOT restrict the establishment or expansion of Israeli settlements - nor of Arab ones. It is the status, rather than the occupation, of Jewish settlements which are among a number of issues to be discussed and settled by negotiation in the final status talks with the Palestinians.
Incidentally, it is often overlooked that Jewish inhabitation in the West Bank is a continuation of a long-standing presence. The 3,OOO-year-old community in Hebron existed throughout centuries of Ottoman rule, while settlements like Neve Ya'akov and the Gush Etzion block were established under the British Mandate. (ii) Khartoum Conference, September 1, 1967
Following the 6-day war of 1967, the Israel unity government declared on June 19, 1967 that it was ready to return the Golan Heights to Syria, Sinai to Egypt and most of the West Bank to Jordan, in return for peace treaties with its Arab neighbours, normalization of relations and guarantee of navigation through the Straits of Tiran. The refugee problem would be solved by resettlement outside the borders of the State of Israel. On the same day, the USSR submitted UN General Assembly Resolution 519, calling for immediate Israeli withdrawal from all territories, with no mention of peace or negotiations. The resolution was voted down on July 4.
In the wake of the Arab defeat, eight Arab heads of state attended an Arab summit conference in Khartoum, Sudan held August 29 - September 1, 1967. It formulated the Arab consensus that underlay the official policies of most Arab states for the next two decades and beyond, with the exception of Egypt: " no peace with Israel, no recognition of Israel, no negotiations with it." (iii) Resolution 242, November 22, 1967 (introduced after the 6 Day War)
UNSC Resolution 242, passed November 22, 1967 and accepted by Israel has two main operative provisions which have become the cornerstone for subsequent negotiations. The resolution affirms that the fulfillment of the UN Charter principles requires the establishing of a just and lasting peace in the Middle East, which should include the application of both of the following principles:
(a) "withdrawal of Israeli armed forces from territories occupied in the recent  conflict" and
(b) the termination of belligerency, together with respect for the territorial integrity and political independence of every State in the area.
As Lord Caradon, sponsor of the draft Resolution, confirmed in 1973, Resolution 242 must be read as a whole.
"Withdrawal should take place to boundaries which are both secure and recognized ….. It was not for us to lay down exactly where the border should be. I know the 1967 border very well. It is not a satisfactory border. It is where troops had to stop, just where they happened to be that night. That is not a permanent boundary."
Moreover, the Resolution did not require Israel to withdraw from "all the" territories. Successive British Foreign Secretaries, Michael Stewart, in 1969, and George Brown, who formulated the Resolution, confirmed to Parliament that the omission of these words was deliberate. As the British delegate to the UN, Lord Caradon, said:
"The 1967 borders, being the 1948 cease fire lines on the ground, were undesirable and artificial. Since the resolution also calls for every state in the area to have the right to live in peace within secure and recognised borders, it follows that the new borders will differ from the territorial lines which applied between 1948 and 1967."
[Resolution 242 also calls for a just settlement of the refugee problem – not just of the Arab refugees. It makes no mention of a right of return for Arabs into Israel.]
Taken together with UNSC Resolution 338 passed on October 22, 1973 (after the Yom Kippur War) it becomes clear that that only negotiations will determine which portion of these territories will eventually become Israeli territory and that which will be retained by Israel's Arab counterpart. Theoretically, it is conceivable, that some Jewish populated settlements could remain in the territories under Palestinian jurisdiction and subject to Palestinian law, just as many Arab villages exist peaceably within Israel proper and are subject to Israeli law. (iv) The Camp David Accords, September 17, 1978
The Camp David Accords of September 1978 established in principle a peace agreement between Israel and Egypt under which Israel was to retreat from Sinai. It also provided for a framework agreement setting up a format for negotiations for the establishment of an autonomous regime in the West Bank and Gaza.
Within the framework of these Accords, an Agreement between Israel and Egypt was signed in March 1979 whereby peace between the parties was declared, with Israel surrendering control of Sinai and removing its settlements. It also led to the resolution - by arbitration - of the dispute over Taba and the establishment of full diplomatic relations.
The former matter has been implemented with Israel transferring Taba to Egypt, while unfortunately the latter have now been virtually suspended. It should also be noted that, contrary to the Peace Agreement, for some considerable time, Egyptian authorities have permitted incitement and hate against Israel to become common practice in the Egyptian media and, in recent months, they have also failed to take steps to prevent the smuggling of illegal weapons into the Gaza strip. (See: Egyptian-Israel Peace Treaty, Art. III.2; Annex I, Art. II and VI.)(v) Madrid Peace Conference, October 1991
The breakup of the Soviet Union and the Gulf War reshaped the basic political order of the Middle East. In an attempt to take advantage of this change, US Secretary of State James Baker made eight trips to the region in the eight months following the Gulf War. The Madrid Invitation, inviting Israel, Syria, Lebanon, Jordan and the Palestinians to an opening conference represents the result of this
shuttle diplomacy. The invitation, an outcome of compromises by all sides, details the structure of the Madrid process:
· An opening conference having no power to impose solutions.
· Bilateral talks with the Arab states bordering Israel.
· Talks with the Palestinians on 5-year interim self-rule, to be followed by talks on the permanent status.
· Multilateral talks on key regional issues, like refugees.(vi) Oslo Accords, 1993
These constitute a series of agreements between Israel and the Palestinian Organisation (PLO):
The first, are letters between Arafat and Rabin whereby, Israel recognizes the PLO as being the representative of the Palestinian people for the purposes of settling the dispute between them and Israel, and a declaration by the PLO renouncing the use of terrorism and violence and an undertaking to amend the PLO Covenant which denies Israel's right to exist. (September 9-10, 1993)
The second is a Declaration of Principles on Interim Self Government Arrangements, dated September 13, 1993 in which Israel and the PLO (forming part of the Jordanian Delegation) agree to put an end to the decades of confrontation and conflict and recognise their mutual legitimate and political rights. The aim of the negotiations was to establish a Palestinian Interim Self-Government Authority, and to elect a Council for the Palestinian people on the West Bank and Gaza for a transitional period of five years, leading to a permanent settlement based on UNSC Resolutions 242 and 338.
The third series of Agreements constitute (i) what appear to be final arrangements between Israel and the PLO in respect of the transfer to the Palestinian Authority of almost all areas of civilian activity and jurisdiction and (ii) interim arrangements regarding the continuing security relationship between Israel and the PLO, containing a framework for both the withdrawal of Israel troops from the territories and the scope of an Israeli continuing military presence until the conclusion of a final status agreement.
As an interim measure an Agreement with the Palestinians in respect of the Gaza Strip and Jericho was signed on May 4, 1994, (Oslo I) and a Peace Treaty between Israel and Jordan was executed on October 26, 1994.
Further interim agreements with the Palestinians were signed in September 1995 (Oslo II), which designate specific areas in which the security and policing functions of the PA and Israeli military forces are to be performed:
A areas are those from which Israel forces would be withdrawn totally except for reasons of external security. The Palestinian Police (their number, political status and weapons having been pre-determined in accordance with agreed criteria) become responsible for internal security, exercising police jurisdiction over all non-Israeli citizens in A areas, i.e. all the major Arab towns and settlements such as Tulkarem, Kakiliya, Nablus, part of Hebron, Jericho, Ramallah, Jenin, Gaza Strip and Bethlehem.
B areas - consisted of those parts of the territory in which some Arab settlement exists but not in concentration, and in which Israel forces jointly with the Palestinian Authority exercise police powers, while Israel retains an overall security function.
C areas - normally unpopulated by Arabs but settled by Jews - would be under the sole jurisdiction of Israel.
With the tragic assassination of Prime Minister Rabin in November 1995, Israel's democratic process took hold. Shimon Peres assumed office and was presented with the problems of settling the boundary division between the Arabs and Jews in Hebron. Following Peres election defeat in 1996, it appeared that negotiations were retarded during the premiership of Binyamin Natanyahu which followed. It should be recalled, however, that his government was successful in concluding the interim Agreement on Hebron, in January 1997, where the designations of Areas A and C on the ground are now firmly settled.
In May 1999, Ehud Barak, after promising to bring Israel's dispute with the Palestinians to a successful conclusion, was elected to succeed Natanyahu as Israeli Prime Minister. Notwithstanding many breaches of the Interim Agreements by the Palestinian Authority, particularly the encouragement, rather than the cessation, of incitement to violence in the media, mosques and schools, the recruitment of more police than agreed, and the failure to suppress terrorist organisations, Barak resolved to complete the peace process in September 1999. He agreed to participate in Final Status negotiations at Camp David in July 2000, making one last final effort at Taba in September 2000 before the expiration of both his term as Prime Minister of Israel and Clinton's tenure as President of the United States.
The outstanding issues between the parties included: the final boundaries between the Palestinian Authority and Israel; the designation of those settlements which were to become part of Israel proper and those which were to be vacated; the characteristics and nature of the future Palestinian State; the political status of Jerusalem and its municipal administration; sovereignty and control over Muslim and Jewish holy sites; and external security.
In the ensuing discussions, Barak offered to concede to the Palestinian Authority 97% of the West Bank Territory captured by Israel in 1967 and a sharing of sovereignty in Jerusalem.
Arafat, on the other hand, insisted on the right of return of between 3 to 5 million refugees and their descendants to within Israel proper, and a rejection of US President Clinton's proposal for joint sovereignty over Jerusalem in general and over the Temple Mount in particular.
Arafat failed to put forward any alternative plans and refused to negotiate further.
In the opinion of some observers, the parties negotiating at Taba were very close to agreement and required a little more time to complete their work; while in the opinion of others, the parties were still very far apart.
It does appear, however, that there was near agreement on the nature of the future Palestinian state, interim security boundaries, particularly in the Jordan Valley, and the control of airspace. Even the question of which settlements were to be vacated and those to be included in Israel proper was almost agreed.
Israel, however, was unable to accept the PA demand for the unrestricted right of refugees to return to Israel. The relocation of this number of Arabs into Israel, which when added to the 1 million existing Israeli Arabs, as compared with the 5 million Jews, would lead inexorably to the destruction of Israel as a Jewish state - which many Israelis believe to be Arafat's true purpose.D. Justification for Continued Israeli Military Presence in the West Bank and Gaza
The basic premise of "Oslo" was the cessation of violence as a means of resolving disputes between the Palestinians and Israel. With the breakdown of the Camp David talks occasioned by the rejection of Israeli and US proposals on Jerusalem and Israel's refusal to accept unlimited refugees, the Palestinians again resorted to violence. There is concrete evidence to support allegations that Arafat initiated and planned the current Intifada, which erupted even before Sharon visited the Temple Mount and contributed to the political downfall of Barak as prime minister and the election of Ariel Sharon in his stead.
Unfortunately, throughout the long period of negotiation, and particularly during the current round of violence, the PA has consistently failed not only to abide by the Oslo Accords which contain a wide range of other provisions laying the foundations of peaceful co-existence between the Israelis and the Palestinians, but has also committed acts of perfidy contrary to the 4th Geneva Convention. (a) Palestinian Breaches of the Oslo Accords
The Palestinian Authority has committed the following major breaches of the Oslo Accords:
i. The obligation to renounce violence and terror and to take all measures necessary to prevent acts of violence and terror against Israel;
ii. The obligation to resolve all outstanding issues through bilateral negotiations;
iii. The duty to refrain from and to act against all forms of incitement;
iv. The duty to apprehend, prosecute and detain terrorists;
v. The duty to confiscate illegal weapons;
vi. The duty to maintain continuously joint security co-operation mechanism with Israel to ensure public order and security;
vii. The duty to ensure that holy sites are respected and protected; and
viii. The duty to ensure that no armed forces, other than the agreed number of Palestinian police, are established who, together with the Israeli Military Forces, operate in the West bank and Gaza strip.
It should also be noted particularly that incitement to violence and hatred against Israel and the Jews has continued unabatedly in the Palestinian media, the mosques and particularly in the schools - where the textbooks do not recognise Israel as existing. (See: Incitement, Anti-Semitism and Hatred of Israel in Palestinian school textbooks', www.mfa.gov.il
With the full knowledge and support of the PA, quantities and qualities of weapons contrary to the Agreements have been smuggled into the West Bank. Additionally the PA has failed to take steps to control the various terrorist groups that have been permitted to operate in territory transferred to the Authority.
Since the breakdown of the talks nearly two years ago and perhaps even before that, a number of members of the Authority's security organisations have participated with the terrorist organisations in planning and executing terrorist actions into Israel proper and against Israel settlements in the West Bank.
It has also become clear that after the breakdown of the Camp David talks, Arafat and his colleagues planned a new campaign of violence, the current intifada, and waited for the right opportunity (Sharon's visit to Temple Mount) to instigate the violence which has now continued for some 20 months. (The Mitchell Report concludes that Sharon's visit was not the cause of the uprising.) Increasing violence fostered by Arafat has led to suicide bombing and deliberate targeting of women and young people, with no condemnation from the UN.
When the reign of terror became unbearable Israel reacted. In order to minimise Palestinian civilian casualties and by way of legitimate anticipatory self defence, Israel instituted the targeted killing of specific terrorist leaders known to be involved directly in the planning and execution of terrorist activities against Israeli citizens; it has captured many organisers of the suicide bombers and has found incontrovertible proof of Arafat's intimate role in launching such bombings and his involvement in the smuggling of illegal weapons. Arafat's declarations of ignorance of the Karine A weapons ship have been shown to be blatant lies.(b) Palestinian Breaches of International Law and 4th Geneva Convention
In addition to breaches of the Oslo Accords, senior officials in the Palestinian Authority have acted in breach of 4th Geneva Convention and in the commission of perfidy contrary to customary laws of war.
In international law, it is important to distinguish between deception or ruses and perfidy. The Hague Regulations in the Laws of War allow ruses, but disallow treachery or perfidy, whose prohibition is reaffirmed in Protocol I of 1977.
Examples of deception include the use of camouflage, decoys and mock operations, false signals and the jamming of communications. Perfidy, on the other hand, includes such treacherous practices as improper use of the white flag, feigned surrender or pretending to have civilian non-combatant status. In particular the shielding military targets and assets from attack by moving them into civilian populated areas, and the placing of armed forces is such areas is unequivocally an act of perfidy and constitutes, what is known in the Laws of War, as a "Grave Breach."
The legal effect of such perfidy - the practice now engaged in by the PLO/PA - is (i) to exempt the victim (in this case, Israel) from the normally operative rules on targets, and (ii) to place the responsibility for civilian injury on the side that engages in perfidy.
This does not imply that terrorism represents a permissible use of force under international law. By its very nature, the PLO/PA plan of violence is overwhelmingly illegal. Jurisprudential expansion of the laws of war under the Article 3, of all four of the Geneva Conventions, make the rules of war applicable not only to Israeli or American uniformed military forces but are also binding upon the Palestinian Authority and the terrorists groups operating with PA support. (See Louis Rene Beres, Atrocities Retaliations and the Laws of War, 10 March 2002)
After suffering intentionally directed Palestinian attacks by terrorists using nail-studded bombs on Israeli women and children, in cafes, places of entertainment and of worship, bus and train stations, Israel has the right and the obligation under national and international law to protect its citizens against terrorist attacks originating from Palestinian territory, and is, without choice, forced to retaliate. This post-attack right is codified in Article 51 of the UN Charter while "anticipatory self-defence is justified under customary international law.
Israel's use of force is designed only for survival and self-protection. Its attacks are aimed specifically and exclusively against PLO/PA military targets and supporting infrastructure, including the targeted killing of known terrorist leaders and perpetrators of murder of Israeli civilians. Unfortunately, Israeli fire sometimes unavoidably kills and injures Palestinian non-combatants, creating the false impression of lawlessness on both sides.
In light of the transfer to the PA of civilian and police control of Areas A of the West Bank and Gaza, the PA has a positive duty under Oslo II to act to prevent lawlessness emanating therefrom. Recent factual evidence and documentary disclosures have shown that PA's involvement and collusion in the following acts, all of which are contrary to the Geneva Conventions:
1. permitting the use of Palestinian Red Crescent ambulances to transport terrorists and weapons;
2. failing to distinguish combatants from non-combatants; and
3. permitting the deliberate placement of Palestinian military targets and assets in densely populated areas in order to shield them from attack.
Instead of restraining the operations of Palestinian terror groups, including the actual participation of members of the PA security forces, the PA has allowed the areas under its control, including the UNWRA organised refugee camps, to become seedbeds of anti-Israel terrorism. It has provided the funds to finance such activities and the activities of suicide bombers operating in Israel itself.
Indeed, even if the PLO/PA had not intentionally been engaged in treachery, any Palestinian link between protected persons and military activities places all legal responsibility for Arab injury to civilian persons and property squarely on the Palestinian Authority and its leadership. (c) UN Agencies' Responsibility in Failing to Prevent Terror
It is generally assumed that the United Nations is a fully accountable and independent body. In the case of the West Bank and Gaza its operating agency UNWRA (United Nations Works and Relief Agency) has a major role to play. Whilst its senior staff have undoubtedly a primary commitment to the UN, one cannot but speculate that this is not necessarily the case at the crucial ground level' where the large majority of staff, some 22,000, are Palestine refugees (www.un.org/unwra
). Even more so when it is realised that the largest single group of its staff are teachers, followed by health service and relief and social services staff – all recruited locally, with priority being given to applications from registered Palestine refugees. Such personnel are obviously a potentially highly significant factor in the transmission of hate and incitement emanating from the schools. The ease with which Palestinian terror groups have been able to infiltrate the refugee camps and use non-combatants as a cover while planning and executing their attacks as well as manufacturing weapons, nail studded bombs and explosives is a further concern.
The responsibility for ensuring the preservation of the civilian/humanitarian nature of the refugee camps clearly lies with the Palestinian Authority since Israel's transfer of powers and responsibility in 1995. This obligation is shared with the UN and humanitarian agencies.
UN organisations, including UNWRA, have operated in the Palestinian Refugee Camps since the 1950s. These organisations have neither spoken out nor taken action to prevent these camps from becoming centres of terrorist activity. None have spoken out against the aggressive and hostile Palestinian actions which originated in the camps in recent months nor against, in the case of Jenin, the choice made by Palestinian gunmen to make their last stand' against Israeli troops in the recent battles from the centre of the civilian refugee camp.
A range of UN Resolutions and other documents have emphasised the obligation upon both the host (PA) and humanitarian organisations working within refugee camps to act and speak out against terrorism and violence taking place in these camps.
UN Security Council Resolutions have called for the civilian/humanitarian nature of the refugee camps to be preserved. In this regard reference should be made to UNSC Resolutions 1208 (1998) and 1296 (2000). The latter called upon the Security General to inform the Security Council of instances where refugee camps are left open to the entrance or armed elements.
Other UN bodies such as the United Nations High Commissioner on Refugees (UNHCR) have stressed the importance of this matter. The responsibility for such preservation lies with the host of the camp. It is interesting to note that Kofi Annan, Secretary General of the UN, in an April 1998 UN report on violence in Africa stated:
Failure to separate armed elements from civilians has led to devastating situations in and around camps and settlements. Not separating combatants from civilians allows armed groups to take control of a camp, and its population, politicising their situation and gradually establishing a military culture in the camp. The impact of safety and security of both the refugees and the neighbouring local populations can be held hostage by militias that operate freely in the camps, spread terror, press-gang civilians, including children, into serving in their forces.
In addition humanitarian aid and supplies are often diverted to these armed elements, depriving the intended civilian beneficiaries.
Finally blurred lines between the civilians and military character of camps expose civilians inside to the risk of attack by opposing forces where camps are perceived to serve as launching pads for renewed fighting. (UN Document A/52/871, para 30).
In UN Document A/52/871, para 54, the following statement appears:
Refugee camps and settlements must be kept free from any military presence or equipment including arms and ammunition. The neutrality and humanitarian character of the camps and settlements must be scrupulously maintained
Why Kofi Annan's observations on Africa are not applied to the Palestinian Authority is quite surprising. This failure and the total absence of international censure over the violation of international humanitarian law by the Palestinian Authority's and international agencies, stand in stark contrast to the intensity of international outcry regarding Israel's response to the terror so readily tolerated and indulged by its biggest critics.(d) Israel's Response to the PA and UN Failures
Under international law, Israel has a right to redress these violations, and need not unilaterally abide by the Oslo agreements if doing so is detrimental to the security of its citizens.
It has been claimed in some arenas, however, that Israel, once having withdrawn from areas of the West Bank and Gaza, has no right to reoccupy them and is acting contrary to the Oslo Accords- particularly Oslo II - which deals with the West Bank and Gaza. This is incorrect.
Israel's incursions into Area A are not a violation of the Oslo Accords, and any implication, particularly those voiced by Israel's friends, that they are, serves to undermine both these Accords and the potential for future agreements:
· Article I (1) of the Oslo II agreement stipulated that "Israel shall continue to exercise powers and responsibilities not transferred," including responsibility for "the overall security of Israelis."
· Article X (3) reiterates that Israel shall continue to carry responsibility for external security as well as overall security of Israelis for the purpose of safeguarding their [Israel's] internal security and public order.
· Article XII adds that Israel has "all powers to take steps necessary to meet this responsibility."
· Article IX of Annex I declares The provisions of this Agreement shall not prejudice Israel's right, for security and safety considerations, to close the crossing points to Israel and to prohibit or limit entry into Israel of persons and of vehicles from the West Bank and the Gaza Strip
· Article XI of Annex I states that Israeli military may take engagement steps (immediate response to an act constituting a danger to life or property that is aimed at preventing or terminating such act or apprehending its perpetrators) even if this occurs "within the territory under the security responsibility of the [Palestinian] Council."
· These powers were reconfirmed in the 1997 Hebron Protocol, which entitles Israel to "carry out independent security activities for the protection of Israelis in H-1" (H-1 in Hebron is the functional equivalent of Area A in the rest of the West Bank). In the meantime, the Hebron Protocol security arrangements, including the joint Israeli-Palestinian patrols on the controlling heights of Abu Sneina, have collapsed entirely.
There is, accordingly, no legal basis for the unconditional demands emanating from some quarters that Israel end incursions into Area A in order to safeguard the security of Israelis. E. The Future?
Arafat is known for saying in English what the West wants to hear, but saying something quite different and inflammatory when speaking to his adherents in Arabic.
Unfortunately, one cannot overlook the possibility that the agreement for exchanging land for peace is nothing more than a ploy - a Trojan Horse short term strategy - in which the ephemeral concept of peace agreed to by the Arabs can be easily reversed, while the concrete moves by Israel in returning the land, once having been made, are irreversible without force of arms. The Palestinians' strategic goal, according to an interview given by the late Faisal Heusseni on June 24 2001, is the liberation of Palestine from the [Jordan] River to the [Mediterranean] Sea. (See The Oslo Accords were a Trojan Horse, Al-Arabi, June 24, 2001.)
By way of deflecting Arab criticism levelled at him for agreeing to the Oslo Accords, Arafat, in a speech given in Johannesburg in 1994, referred to the Treaty of Hudaibiya made in 628 between Mohammed and his opponents, the Qurayish. Mohammed entered the agreement in order to gain access to Mecca, in circumstances which were adverse to him at the time, but intending to break that agreement when the balance of power changed in his favour. Arafat's speech clearly implied that if it was legitimate for Mohammed to enter such a treaty, so could he, Arafat, agree to enter the Oslo Accords on the same basis. One can therefore reasonably conclude that Arafat has never has had any intention of creating a stable and long lasting peace with Israel. (Guy Bechor, Between Hudaibiya and Gaza-Jericho', Haaretz, May 23, 1994)
For Arafat and the Palestinians, Occupation does not mean Israel's occupation of the West Bank, but rather Israel's occupation of any part of Mandatory Palestine; the ultimate goal of Arafat and his supporters being the replacement of Israel by Palestine.
The first step to abolish the Zionist entity is to disarm it of weapons of mass destruction, the second and crucial step - agreement by the countries of the Western world to receive the Jews currently residing upon the land of "Palestine". The third and final step - dismantling Israel and the return of the original residents of "Palestine" to their homes and their land. (See: A-Sabah, Official Palestinian Newspaper (Internet issue), mid-May, 2002, www.alsbah.com/news15.htm
In any event, notwithstanding any public statements made by Arafat and the PA that might be in support of peaceful co-existence with Israel, peace cannot take root until at least one or two generations have passed after the cessation of the vicious anti Israeli and anti Jewish incitement that is spat out daily in the Arab media and in Arab schools. Suicide bombers are such, not because of despair, but because they have been brought up to hate and to kill Jews. This is something that Arafat can change or his successor must be made to change, before any meaningful negotiations can take place.
While the UN and others support the Arabs in their unrealistic demands, the Palestinian militants will continue their violence because they are encouraged to believe the world supports their position.
Even if the violence and incitement to violence were to stop immediately for purely political reasons, there are further difficulties which the Arabs have to overcome in making peace with Israel:
(a) In Islamic tradition, the Jew and the Christian are Dhimmis - second-class citizens. While as people of the Book, they were not compelled to convert to Islam or face death (as were other non believers), they were obliged to submit to Islam and bear many civil indignities and military disabilities in the Islamic world. It has not, in the past, and neither does it seem acceptable in the present fundamentalist Arab world for a dhimmi (particularly a Jew) to control and have sovereignty over territory that once constituted part of dar Islam. (See: Bat Ye'or The Dhimmi: Jews and Christians Under Islam, Associated University Press, Cranbury, NJ 1985.)
The status of the Dhimmi and the lack of freedom of religion in the Arab states is still current today. It is not generally known that in the Palestinian administered areas there is a continuing intense religious intolerance. In particular the Palestinian Authority is well aware of the persecution of Islamic converts to Christianity. (Weiner, Human Rights in the Emerging Palestinian State, Detroit College of Law, Journal of International Law, 8, pp. 540-594.)
(b) The vast Arab world has lost face when confronted with the technological, social, political and particularly military achievements of a small non-Moslem neighbouring state like Israel. Notwithstanding its lack of natural resources, its successful absorption of immigrants and ability to bear the associated financial burdens, many claim that Arab honour will only be recovered when Israel is eradicated.
(c) While the Arab states have recognised the advantages of modernisation (acceptance and use of modern communication, transportation and weapons technology) they have not become Westernised. For them, democratic government, sexual equality, freedom of speech and religion is unrecognised. Israel, constitututing 1/6 of 1 per cent of the Arab world, stands as an island of democracy in a sea of Arab dictatorships and authoritarianism - whether religious or secular – and somehow presents a threat to their regimes.
More specifically, even if Arafat or his successor is persuaded that the cessation of violence is to his advantage, it will take many years to eradicate the anti Jewish/Israeli hate that has been inculcated into the Arab population of the Middle East over the last century.
Since its establishment, particularly after the Six Day War, Israel has been accused of being racist and having colonial aspiration characteristics that are an anathema to Arab and other emerging nations. While this issue is the subject of another paper, it should be recalled that Israel has among its citizens, not only Jews but Christians, Muslims, Bahai, and Druze; all with equal civil rights and whose holy places are fully respected both in law and in practice. Israeli Arabs participate in civic public life as members of the Knesset (Israel's legislature), judges in the Israeli Supreme and inferior Courts, in the free professions and in the civil service. Ethnically Israel has within its population, Black Jews from Ethiopia, Coloured Jews from North Africa, Yemenites, Jews from India, Caucasian white Jews from Europe as well as Arab Moslems and Christians.
As a cultural minority in the Middle East, what Israel, a country the size of Wales, seeks, is not only the right of its citizens to live in peace with its neighbours, but to be able to express, as a majority within its own territory, its history, its own varied Jewish culture, social, religious and secular customs, values and practices without having to justify and expose them to exceptional international scrutiny and approval.
Prof. Gerald M. Adler Ll.M J.S.D (Yale)
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